Von der Schulgewalt zum Recht auf Bildung?

Abstract

The evolution of Education Law under the Grundgesetz (German Basic Law) is a story of juridification and constitutionalisation. The development from “Schulgewalt” (Schooling Powers) to the Right to Education is far from simple. On the one hand, even under the Weimar Constitution, school was a legally structured field. Equally, the post-war constitutions of the German Länder (federal states) contained and still contain detailed provisions concerning schools. On the other hand, today’s Education Law is not only and not even mainly shaped by the Right to Education (as laid down in most of the Länder constitutions as well as stated in the famous “Federal Pandemic Emergency Brake II (school closures)” decision of the Federal Constitutional Court), but also by the objective duty of the state arising from Art. 7‍(1) GG, which requires the state to afford educational opportunities to children.

School is a legally structured space, closely ruled by fundamental rights, statutes, statutory orders, administrative provisions, as well as the jurisprudence of constitutional and administrative courts.

Equally, according to the courts, it is a space of integration, intended, and actually perceived to contribute to societal integration in a fragmented society.

Finally, school today is meant to be a space of care. At the interface of Education Law and Social Security Law, it is loaded with many care and assistance functions and challenged by new divisions of labour.